Death of Hindu male intestate.

A simple question in the applicability of section 6 of the Hindu Succession Act arises for consideration in this appeal by the plaintiff. The suit was for recovery of a sum of Rs. 54,627.50 P. due under a security bond executed by defendants 1 to 9 in the suit in favour of one Somasundaram Chettiar, the father of the plaintiff. The 10th defendant to the suit is the son of a predeceased daughter of this Somasundaram Chettiar. There is no serious dispute as to the liability for the amount claimed and the only matter seriously put in issue is the claim of the 10th defendant to a l/4th share in the suit amount under the Hindu Succession Act. The trial Court has upheld his claim and in granting a preliminary decree against defendants 1 to 9 in favour of the plaintiff and the 10th defendant, declared their respective shares in the amount as 3/4th and l/4th.

There is no dispute that Somasundaram Chettiar died as a member of a Mitakshara Joint Hindu family leaving surviving his son, the plaintiff in the suit and the 10th defendant, son of a predeceased daughter. Somasundaram Chettiar died on 1st December, 1957 after the Hindu Succession Act of 1956 came into force. It is stated that there is a suit pending between the plaintiff and the 10th defendant, Original Suit No. 1 of 1958 on the file of the Sub-Court, Devakottai, instituted by the 10th defendant for partition and separate possession of a l/4th share in the joint family properties. Section 6 of the Act while affirming the Mitakshara law of survivorship applicable to coparcenary property to an extent by a proviso engrafts a vital exception, conferring new rights on certain female heirs and the son of a predeceased daughter of a deceased coparcener in his interest in the coparcenary property at the time of his death. Explanation I to section 6 provides that the interest of a Hindu Mitakshara coparcener for the purpose of the section shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death. Where the proviso to section 6 applies, the interest of the deceased devolves by testamentary or intestate succession as the case may be under the Act; the interest does not survive to the remaining coparceners automatically and eo instante on the death. Section 30 of the Act enables the coparcener to make a testamentary disposition of his interest in the coparcenary property. Section 6 runs thus ;

“ When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by, survivorship.”

Plainly read, in a case falling under the proviso the interest of the deceased coparcener where he has left no will, will devolve by intestate succession upon the persons alive at the time of his death who are among the 12 preferential heirs specified in Class I of the Schedule. Under section 8, the property of a male Hindu dying firstly devolves upon the relatives specified in Class I of the Schedule. As the proviso comes into play only after the deceased had left surviving the relatives in Class I specified in the proviso, the sharing of the interest will be only among Class I heirs. Under section 9 of the Act they inherit that interest simultaneously and as provided for in section 19 of the Act, share as tenants-in-common.

Learned Counsel Mr. R. Ramamurthi Iyer for the plaintiff-appellant contends that for the proviso to apply by reason